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Sentencing/Post Conviction

5th Circuit denies Miss. inmate’s habeas corpus petition citing controversial forensic pathologist

Posted Mar 4, 2014 5:45 PM CDT
By Mark Hansen

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A federal appeals court has denied a Mississippi prisoner's petition for a successive writ of habeas corpus.

The New Orleans-based 5th U.S. Circuit Court of Appeals, in a Jan. 31 ruling (PDF), said inmate Tavares Flaggs hadn't shown that the factual predicate of his proposed claims could not have been discovered previously through the exercise of due diligence; nor did he show that those facts would establish by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted him.

Flaggs, who is serving a life sentence for the 2005 murder of another man, hadn't claimed that he did not kill the victim. He argued instead that the killing was in self-defense, the Washington Post blog The Watch reports.

He was convicted largely on the expert testimony of controversial forensic pathologist Steven Hayne, who testified that blood spatter evidence at the scene of the crime supported the prosecution's theory that Flagg was the aggressor and not acting in self-defense.

The petition, filed on Flaggs' behalf by the Mississippi Innocence Project, contended that the factual predicate for his claim that Hayne's testimony was unreliable could not have been discovered prior to Hayne's 2012 deposition in a defamation suit against the Mississippi Innocence Project after it tried to get Hayne's medical license revoked.

But the appeals court said the evidence providing the factual predicate for Flaggs' claim is not new. "Hayne had been widely and publicly criticized for several years before the 2012 deposition and certainly before the filing of Flagg's [first habeas petition] in 2011," the three-judge panel said in a per curiam opinion.

The court also said that Flaggs hadn't shown that Hayne's testimony at trial was either false or unreliable. And it said he hadn't shown by clear and convincing evidence that no jury would have convicted him but for the allegedly unconstitutional admission of Hayne's testimony.

Tucker Carrington, who heads the Mississippi Innocence Project, told Post blogger Radley Balko that the panel had its facts wrong.

"The state was actively hiding all of this," he said. "Trial judges were refusing to grant any discovery about it. All the while Hayne was lying, and getting away with it."

Updated March 5 to clarify Flaggs' self-defense assertion.

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